Friday, January 7, 2011

Combining time travel with mind reading

A lawyer in Calif. interviewed Justice Antonin Scalia of the Supremes. As part of it, Scalia said the Constitution doesn't require discrimination of women and gays -- but it doesn't prohibit it either. If Congress wants to pass anti-discrimination laws, that's fine. If they don't, that's fine too. Don't like the way someone is treated? Convince your fellow citizens to pressure Congress to get a law passed. Originalism isn't perfect, but it has answers for a lot of things -- the answers are so clear that many times he doesn't have to read the case briefs.

Evidently, tyranny of the majority is just fine with him. As long as nobody tries to discriminate against white guys.

Responders are, of course, appalled that someone so high in government thinks discrimination is just fine. Especially in 2011.

Scalia's ideas are dangerous because of people like the incoming Governor Scott of Florida. He started off his term by saying:

It shall be the policy of my administration to prohibit discrimination in employment based on race, gender, creed, color, or national origin, and to ensure equal opportunity for all individuals currently employed in, and individuals seeking employment in, my administration.

Since all those categories are already listed in national anti-discrimination laws, why bother to say it? It's his way of saying (without actually saying) he very much will discriminate against the categories that were not listed: sexual orientation, gender expression, and disability.

Timothy Kincaid of the Box Turtle Bulletin takes a look at the originalism that Scalia claims to follow. It seems Scalia is as selective as the Fundie view of the Bible. The originalist view of the Constitution is that a right not mentioned is a right that doesn't exist. It seems even rights clearly in black and white are also seen as non-existent. Their claim is that the modern "interpretation of the Constitution should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be."

Got a problem with that? Yeah, says Kincaid. Scalia has to make three broad assumptions for his view of originalism to work.

1. "That the Constitution is not a document of guiding principles, but a law text which applies only to the specific intentions designed to address specific issues." If one is truly an originalist, those issues are confined to the original 13 states and the goods and services that existed in 1789.

2. "That the drafters of the 14th Amendment were careless." The 14th Amendment, the one about rights being universal, clearly says "any person." It seems Scalia believes what the authors meant to say and carelessly didn't was, "any male citizen landowner."

3. "That the men who wrote and voted for the 14th Amendment could not espouse principles grander than they personally could aspire." There are a lot of people in our history whose beliefs exceeded their abilities. Washington was troubled by slavery, yet owned slaves. The battle for women's rights was well underway in 1868 when the 14th was adopted. So the Constitution holds guiding principles which those at the time knew were correct, even though society couldn't reach them yet.

A commenter adds a fourth assumption. Scalia understands and can correctly choose the wide variety of reasons why a lawmaker might have voted for the amendment.

Several others note that the Constitution does not say that a right must be listed to exist. Instead it says, "among the rights are…"

If the writers of the 14th, in 1868, knew and correctly understood homosexuality (which wasn't even identified and named until a few years later) would they have added the phrase "except gays" to their new amendment?

So Scalia is basing his understanding of the Constitution not on guiding principles nor on the actual text, but on his "stereotype of the mindset of a mid-eighteenth century congressman might be." He would need a time machine and be a mind reader to know that. Scalia wants the Constitution to confirm his own biases. Originalism is only his methodology. The same way a Fundie treats the Bible.